§ 12.3 The Inspection Process

• Library: Rights of Foreign Nationals (OSBar) (2020 Ed.)

§ 12.3 THE INSPECTION PROCESS

Travelers, regardless of citizenship, who seek to enter the United States or one of its territories in any manner and by any means must present themselves and all accompanying personal items for inspection to an officer of CBP. The inspection process generally involves presenting oneself to a CBP officer for questioning at the first available POE. It is a criminal offense punishable by a fine of up to $5,000, imprisonment for up to six months, or both for any non-U.S. citizen to enter or attempt to enter the United States without inspection or to elude or attempt to elude inspections officers. 8 USC § 1325(a). The CBP officer must assess the identity of the traveler, evaluate whether the traveler is eligible for admission to the United States in the requested category of admission, and determine whether the traveler possesses current, valid, bona fide, and appropriate documentary evidence of eligibility for admission in the requested category (e.g., as a visitor, international student, or returning permanent resident). CBP operates 328 land, sea, and air POEs around the United States as well as 12 "pre-flight inspection" POEs located at international airports abroad (e.g., Canada and Ireland) where travelers are inspected by CBP officers and legally "admitted" before they even board an aircraft bound for the United States The admission process is the same regardless of location or type of POE. CBP, Snapshot: A Summary of CBP Facts and Figures (June 2020), < www.cbp.gov/sites/default/files/assets/documents/2020-Jun/CBP-Snapshot-20200611-web.pdf >.

The inspecting CBP officer is the ultimate arbiter of whether a traveler is admitted to the United States. Even if a traveler has all of the required documentation (as described below) and is otherwise eligible for admission to the United States, the inspecting officer has wide discretion to decide whether the traveler should be legally admitted into the United States, under what conditions, and for how long. It is therefore critically important that travelers have and present all required documentation demonstrating eligibility for admission and that they interact with the inspecting officer in as positive and cooperative a manner as possible. Only U.S. citizens have a right to be admitted to the United States, and even they are subject to a wide variety of laws that could affect their inspection process. Non-U.S. citizens, including LPRs but especially nonimmigrants, should understand that every interaction with an inspecting CBP officer is fraught with a certain amount of peril that could result in their being denied admission to the United States, potentially having their visa or other immigration documentation cancelled, or in the worst case scenario, being ordered "removed" (legally deported) from the United States. Anyone who is ordered removed at the border could be barred from re-entering the United States for a minimum of three years and potentially indefinitely. See 8 USC § 1182(a)(9)(B)(i), (a)(9)(C)(i). No one should present themselves for inspection unless they possess all required documentation and are otherwise eligible for the requested status.

§ 12.3-1 Passport Requirement

Every inspection requires presentation of a valid, current passport. This is true for all foreign travelers, regardless of their citizenship, age, or means of arrival (including on foot or by land, sea, or air). The only (and minor) exception is for Canadian citizens aged 15 years or younger traveling to the United States from Canada or Mexico by land or sea. All air travelers regardless of age require passports. With the exception of Canadian citizens, all nonimmigrant travelers must possess a passport that is valid for six months beyond the expiration of their requested period of admission. See CBP, Welcome to the United States: A Guide for International Visitors at 2-3 (Mar 2007), < www.cbp.gov/sites/default/files/documents/WelcomeToTheUS.pdf >. For example, someone seeking admission as a visitor for three months must possess a passport that is valid for at least nine months at the time of inspection. LPRs must possess a passport that is valid at the time of entry but not for any specific period thereafter. Nonimmigrants who seek admission to the United States with a passport that is not valid for at least six months beyond the requested period of admission may be refused admission or have the duration of their stay reduced to the expiration of their passport.

§ 12.3-2 Visa Requirement

In addition to a passport (see § 12.3-1), every inspection also requires...